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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1 (permalink)  
Old 01-24-2017, 09:06 PM
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Default won motion, cost submission meeting, do I need legal help there?

hi all,


just got judge's decision for dismissal of OCL involvement which I opposed in the motion brought on me for OCL to be involved. So, I won the motion and am entitled to costs and judge scheduled a court meeting for cost submission. I don't know if I should go on my own or with lawyer and also if this time in court that lawyer will spend there should be included into costs claimed or not - this won't be already OCL motion or still part of such process? Last time I spent 4 hours in court for one hour hearing because there were cases before ours and spent over 1 K for lawyer to attend..

Now I am thinking maybe this time I should go on my own. Does anyone know the process for cost submission and other than written document would I need to argue there or it is relatively unstressful process? What is it like and if there is any written material or articles and tips on cost submission process, please, share.

And also I wonder what part a lawyer plays there, I mean could I win more costs with lawyer versus being self-represented. Invoice should state pretty clear how much is spent on certain issue, so I wonder what to argue about there. It will be to judge's discretion which fraction if at all I get?
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Old 01-24-2017, 10:01 PM
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Congrats on the win. I like winning motions too.

Q-You're going to go on your own to collect the fees you paid to your lawyer? Why don't you send your lawyer to collect the fees he or she charged you on your behalf? Tell him/her she can use it to pay off his / her bill.

There is no guarantee you will get it all unless the other party was being unreasonable. Chances are that it may just very well be reserved for final determination by a final hearing/trial judge.
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Old 01-24-2017, 10:07 PM
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i paid my lawyer for work done, the question is to return at least some of this back..but I just don't know should I pay 700-900 more for her to go there for a meeting scheduled purely for cost submissiom ( i have a feeling judge will decide on that meeting on costs as it is purely scheduled for that) versus just going there myself and giving a bill to the judge and save on legal fees. I don't know the procedure so I don't know if I could handle it or not myself. So far, I have never attended myself. Will lawyers argue about costs or what is it like?
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Old 01-24-2017, 11:32 PM
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I thought cost submissions were usually done in writing?
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Old 01-25-2017, 01:50 PM
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Quote:
Originally Posted by Tatyana K View Post
just got judge's decision for dismissal of OCL involvement which I opposed in the motion brought on me for OCL to be involved. So, I won the motion and am entitled to costs and judge scheduled a court meeting for cost submission.
This isn't a landfall victory. OCL / Section 30 motions are easily defeated using commonly cited case law and thanks to the Honourable Mr. Justice Pazaratz:

Baillie v. Baillie, 2012 ONSC 3728 (CanLII)
Date: 2012-06-26
Docket: F/435/11
Other citation: 26 RFL (7th) 130
Citation: Baillie v. Baillie, 2012 ONSC 3728 (CanLII)
http://canlii.ca/t/frtlz
(8 citations to review as well)

Some insight from Justice Pazaratz...

Quote:
[65] A parent who successfully defends a motion for a s.30 assessment should not presume that the court disfavours professional assistance in resolving children’s issues – or, that we favour trials.
An extension to the above case law is:

Glick v. Cale, 2013 ONSC 893 (CanLII)
Date: 2013-02-07
Docket: FS – 11-367730
Other citation: 48 RFL (7th) 435
Citation: Glick v. Cale, 2013 ONSC 893 (CanLII)
http://canlii.ca/t/fw1r9

Common criteria (no doubt leveraged in your cross motion) are:

Quote:
[48] I have endeavoured to provide this non-exhaustive list of criteria which might assist a judge in deciding whether to order an assessment:
(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?
Source: Glick v. Cale, 2013 ONSC 893 (CanLII), par. 48, http://canlii.ca/t/fw1r9#par48
Don't expect a landfall on "costs" with regards to blocking an order for OCL/Section 30. The assessement to determine if it is truly needed is often something that can not be settled without the assistance of the court as the criteria is not easily applied.

Also, if the OCL / Section 30 was being requested by the other party to provide insight into the matter to the court regarding mobility it is a common request. One a very experienced lawyer would have known was a terrible choice to make as courts do not rely upon OCL/Section 30 for mobility matters. Those are very much "evidence" based trials.

If you search my threads you will see all the rejection of "expert opinions" on mobility. The only application that matters in Mobility is really Gortez and related case law. OCL and Section 30 can wax poetic all they want about mobility... The court will determine the matter on the basis of facts and not hearsay from an "expert".

Your dispute is about mobility. I do not believe that the input of an assessor or an Office of the Children’s Lawyer clinical investigator is required or would be of assistance to the court in addressing your issue. Your issue can be determined based on the evidence of both parties and any other individuals who have had an opportunity to witness both parties’ interactions with each other and the child over the years.

If you do get costs awarded for this it will be minimal.

Good Luck!
Tayken
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Old 01-25-2017, 01:52 PM
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Quote:
Originally Posted by Janus View Post
I thought cost submissions were usually done in writing?
Nope. For example... The resulting costs order for http://canlii.ca/t/fpd0d was given viva voce. Although the respondent in this matter was properly prepared and brought a book of authorities the costs request was done orally and no official submission was made. It did clip the wings of many Legal Aid recipients.

Good Luck!
Tayken
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Old 01-25-2017, 01:56 PM
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well, no, mobility is not even in court yet. father wanted to reduce child support, expand access and also did interim motion for involvement of OCL, I guess hoping ocl report will help him to expand access, all that he did only 9 months after final order was signed on consent ( we spent almost 3 years in court)

judge decided ocl motion is totally unreasonable and dismissed it and invited us to speak about costs and if not agreed to costs, submit our written submissions on same date. I decided I will go with lawyer, I should get at least something after all the thousands $$$$$ spent. I think it will be much more beneficial to spend this money on education fund...for my child.

thanks for cases, I will read them!
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Old 01-25-2017, 01:57 PM
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if I do mobility and they try to involve ocl again, I will think 1000 times before opposing,...but right now it was a different story
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Old 01-25-2017, 02:01 PM
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statistics about mobility says only 25 % cases involve OCL and only 20 % of "No to move" opinions from OCL are taken into account by judge when deciding whether mother can move or not.... roughly this is what I read on governmental website about real statistics on mobility cases analyzed...but in this motion it was nothing to do with mobility..father just said that child wants to spend more time with him....this was his only argument why ocl should be involved. it looked unreasonable. To me it only created chaos in my life and 5 K spent on it...Who wants stranger in their house doing fishing expedition while child is doing totally fine
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Old 01-25-2017, 02:13 PM
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You may want to do your research. Your costs may not be for everything youve incurred to date. They may just be for this motion. Which means only the costs for responding to this motion for ocl involvement. Added to that, there is a limit on what you can claim as costs. Do your research before going in with a laundry list a mile long.
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